If you are a lesbian woman in New Hampshire, you and your unmarried female partner agree to conceive a child through donor insemination, and you hold the child out as your own even though you are not genetically related to the child, can you claim parentage of the child under New Hampshire law? Amazingly, this is not clear. New Hampshire's parentage statute, RSA 168-B:3, is not gender neutral on its face; instead, the statute applies only to a father who is seeking to establish parentage, not a mother. This needs to change.
The ACLU-NH is proud to have submitted – along with Lambda Legal and other organizations, and with the help of Gay & Lesbian Advocates & Defenders ("GLAD") – an amicus brief to the New Hampshire Supreme Court in support of the argument that construing RSA 168-B:3 to apply only to fathers, and not to mothers, violates basic equal protection principles. Such a construction treats a child of same-sex parents differently from a child of different-sex parents, and treats a mother who parents with another woman differently from a father.
The case before the Supreme Court presents a tragic set of facts. S.B. is a non-birth mother in New Hampshire whose female ex-partner, M.D., has kept her from seeing their eleven-year-old daughter, M.B. M.D. is the biological mother of the child, and S.B. and M.D. raised M.B. together from her birth in 2002 until age six, and then co-parented her for over five years after they split up. M.B. was conceived through donor insemination – a form of "assisted reproductive technology." At the time of M.B.'s birth, the couple could not marry in New Hampshire – which would have established S.B.'s legal parentage. As a result, a guardianship was the only way to establish S.B.'s legal relationship with their daughter. Earlier this year, M.D. terminated that guardianship in family court, cutting off contact between them, and began proceedings for her new husband to adopt M.B.
With representation by GLAD, S.B. is doing everything she can legally to see her daughter again – including filing a petition to establish her parental rights under RSA 168-B:3 on the basis that S.B. has and continues to openly hold out M.B. as her child. Unfortunately, the family court dismissed S.B.’s parentage petition without providing for a hearing, and S.B. has appealed that decision to the New Hampshire Supreme Court.
As explained in the amicus brief before the Supreme Court, failing to protect the relationships between children who are conceived from assisted reproductive technology and their genetically-unrelated parents places the children at serious risk of emotional harm and financial insecurity. The brief further addresses how the Court has multiple routes under New Hampshire law to protect children born through assisted reproductive technology by securing their legal relationships with both of the adults who brought them into the world and function as their parents, regardless of the marital status, gender, or sexual orientation of those adults.